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Frequently Asked Questions
- What is the traditional legal process for obtaining a divorce ?
- What is divorce mediation?
- What gets discussed at Divorce Mediation?
- What's the difference between a Mediator and Collaborative Law?
- What's the best way to select a Divorce Mediator or Attorney?
- Does Mediation work in every Divorce Case?
- How long will it take and what does it cost?
- Does the Mediator Prepare the Divorce Papers?
- Do We Have To Use an Attorney to Put Our Divorce Through Court?
- Which is better Mediation, Collaborative or traditional Representation?
- How Much Child Support Will I Have To Pay?
- Will I Have To Pay Alimony? How Much?
- Do We Have To State Specific Reasons For Getting Divorced?
- We Have Already Agreed On Everything. Do We Still Need a Mediator?
- Can Mediation Help Us Before We Get Divorced?
- Can Mediation Help Us After We Get Divorced?
- We’re Not Married, But We Want Help Splitting Up. Can Mediation Help Us?
- We’ve Already Started To Litigate Our Divorce. Can Mediation Still Help Us?
- What Kind of Agreements Do We Have to Sign to Mediate?
- Will I Be Required to Post a Retainer?
- What Should I Bring to My First Appointment.
- What is Limited Representation?
1. What is the traditional legal process for divorce?
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In traditional representation, you hire a lawyer to promote your interests, often with considerable indifference to your spouses’ needs. Although no two attorneys approach divorce in the same way, certain practices are standard. Typically, both attorneys meet with their individual clients to gather information, explain the law, stake out positions. After this initial meeting, each spouse may return home with completely different ideas of what is fair and or what they should expect. Often, financial information may be missing. An attorney may commence a process to gather information known as “discovery.” This can be done informally by a voluntary exchange of information. Some attorneys however prefer, or feel the circumstances require, formal discovery that is supervised by the court and is typically done by (a) written questions called interrogatories that must be answered under oath; (b) requests for productions of documents; or (c) deposition testimony taken before a court reporter. The discovery process can be very expensive. Depending on the complexity of the case, expert witnesses may be needed. Experts can, for example, testify on the value of marital assets or on parenting issues. Often, divorcing families need to reach some agreement on how they will handle their finances while the case is pending. This can be done by way of an informal agreement. Again, however, some attorney file motions with the court requesting temporary orders and the parties are often left to argue over an interim financial arrangement or a parenting plan for the children while the case is pending.
After the attorneys have agreed upon formal or informal temporary orders and they have exchanged sufficient information, then settlement negotiations would be expected. Most of these discussions are between the lawyers. Clients are seldom involved in the negotiations, but settlement discussions should be communicated to the client. If the negotiations go well and an agreement is reached, a settlement agreement is prepared and approved by the court. If negotiations fail, then the lawyers may consider, or the court may order, mediation. If all efforts to settle fail, then the attorneys commence trial preparation. This could include readying witnesses, assembling and preparing exhibits for trial, and writing briefs for the court’s consideration. At trial, the court will make the decisions the parties were unable to make on their own.
The vast majority (probably over 90%) of litigated divorces settle. Those settlements often come too late – after significant marital assets were spent on litigation, good will and respect for each other diminished, and after the children and family have been needlessly stressed.
2. What is Divorce Mediation?
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In divorce mediation, the mediator does not represent either party, but instead tries to help them both in a confidential settlement process. Initially, both parties meet with the mediator together. An attorney mediator is likely to gather information, explain the law to both parties in general terms and often meets briefly with the parties separately. The mediator then assists the parties in reaching their own agreement.
Mediation is a voluntary process. If either spouse does not wish to continue mediation, then traditional divorce litigation may be pursued. The vast majority of couples that begin mediation, complete the process and obtain their divorce through the mediation process.
3. What gets discussed in divorce mediation?
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You will cover the same topics that would be covered in a litigated divorce. If there are minor children, parenting schedules, parenting plans, child support and related issues are discussed. The distribution of both the financial assets and financial liabilities of the couple must also be addressed – e.g., what happens to the house, the cars and the credit card bills. Spousal maintenance (also referred to as alimony) is considered.
Each couple is different. One of the advantages of mediation is that it promotes flexible and creative solutions that courts and lawyers may not otherwise consider.
4. What’s the difference between a mediation and Collaborative Law?
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Collaborative Law is a relatively new hybrid that strives to blend the best of mediation and traditional divorce representation. Like traditional divorce, both parties have their own separate counsel; however, the parties typically follow a process that is guided by many mediation principles. The parties engage in informal discovery. Many of the meetings and negotiations are conducted with the clients present. If experts are necessary, the parties attempt to agree and use a common expert. The attorney and the clients commit from the beginning to settlement and if they can not reach settlement, the Collaborative lawyers resign from the case and the clients must start all over with new litigation counsel.
5. What’s the Best Way to Select a Divorce Mediator or Collaborative attorney?
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Use the same common sense and due diligence that you would when hiring a lawyer, an accountant or other professional.
Things to take into account include the mediator’s educational and professional background. Most couples want a mediator who is also an experienced attorney, so that he or she can draw upon their knowledge of the law and typical resolutions of issues if litigated. The mediator should also have significant training in divorce mediation, and be a member of professional mediation organizations. Most of all, the mediator you select should be someone you feel that you will be able to talk with openly and honestly and who will do the same with you.
Although not essential, peer and professional recognition may be good barometers of ability. Membership in the American Academy of Matrimonial Lawyers, local bar groups dedicated to Family Law issues, certification by the State of Kansas, and significant experience are all are positives. Referral from other lawyers, judges or satisfied clients should also be considered. The mediation process is very powerful. Getting into the mediation vehicle may be more important than the driver of the process.
6. Does Mediation Work in Every Divorce Case?
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Mediation works very effectively in most, but not all divorces. Mediation gets rid of the intermediaries and gets the couple talking, in a structured, safe environment. Surprisingly, mediation may be preferable to traditional litigation even where one or both parties are angry. Although generally well meaning, lawyers in traditional representation often intensify the anger, bitterness, and lack of trust between the parties and often discourage any communication while the case is pending. Mediation encourages parties to recognize and let go of destructive emotions and encourages productive communication.
Divorce mediation may not work well in situations where one or both of the couple are unable or unwilling to be open and honest
7. How long will my case take and what will it cost?
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How long your divorce takes depends upon you, your schedule, the complexity of your situation and the level of agreement or disagreement that exists between the two of you. In Kansas, there is sixty day minimum waiting requirement from the date the petition for divorce has been filed.
The length of mediation is tailored to you and your schedule. Mediation is generally conducted by me in two hour sessions, but can be longer where necessary and generally occur every other week. Many mediators provide evening and weekend appointments. Hourly rates for mediators vary widely as do the rates for divorce attorneys. Most Family Law lawyers will charge at least $150 an hour and very few charge more than $350 an hour. Most families find that they save money with a mediator, even when using consulting attorneys to review agreements or to seek legal advice, for the simple reason that it takes fewer hours to reach settlement.
8. Does the Mediator Prepare the Divorce Papers?
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To initiate a divorce, one spouse must file a document called a petition typically in the county where the parties reside. Their spouse must then file either an answer or an entry of appearance to avoid service of the petition by the local sheriff. If either spouse has their own attorney, that attorney may file the petition or the answer. If neither party has an attorney, an attorney mediator may file a petition for one of the parties and an answer or entry of appearance for the other party. In doing so, the mediator is not representing either spouse and is only helping the parties to prepare the necessary forms to get the matter commenced. When the mediator prepares the petition and the answer for the parties, the parties are in the court system pro se, which means with out a lawyer.
9. Do We Have To Use an Attorney to Put Our Divorce Through Court?
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Although not legally required, having representation, or a consulting attorney, during mediation is strongly advised for a number of reasons. First, the mediator can not give you legal advice. The mediated agreement will be stronger to the extent both parties understand exactly what they have given up as well as what they receive.
There is often a natural, but healthy, tension between lawyers and mediators. In a traditional divorce, both attorneys want their clients to get a “good deal.” However, if there are limited resources available for division, a good deal for one spouse might equate to an unfair or “bad deal” for the other spouse. In mediation, we are therefore seeking a fair deal for both parties, recognizing that good deals for everyone involved may not be possible. The mediation process also emphasizes that pushing for the good deal is expensive and often detrimental to your relationship with your spouse. The consulting lawyer’s role is to give advice, respect the client’s decision to avoid an adversarial process, and help the client to obtain a fair agreement. A consulting lawyer will also review any agreement prepared by the mediator to make sure that the agreement accurately reflect the parties’ agreement and will be available to assist with any required court hearings. Typically, the mediator also turns to the consulting attorney for assistance in making sure the client understands the law and the risks in particular positions.
A mediator should respect each person’s choice in selecting a consulting attorney. The use of “mediation-friendly” attorneys enables clients to strike a balance between having the cost-savings and reduced friction that a mediated divorce provides with the protection that a qualified attorney offers.
10. What’s better for me traditional representation, mediation or Collaborative Law?
Although no exact figures are collected, it is safe to say that 80 to 90% of divorces are still accomplished in a traditional legal framework. Although rapidly growing, mediation is still grossly underutilized. Likewise, Collaborative Law has been slow to “catch-on” notwithstanding its considerable advantages. The divorce process is hard, but choosing the right course will greatly impact the extent of the difficulty. Mediation and Collaborative Law will be the best choices for most, but not all families. The chart below attempts to summarize some of the possible advantages and disadvantages of each process, assuming in each case that the practitioners selected by you are of comparable skill and ability.
| Issue |
Traditional |
Mediation |
Collabor-ative
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| Full Asset Disclosure
|
Good |
Good |
Good |
| Incomplete Asset Disclosure |
Excellent |
Poor |
Fair |
| Children are a high priority |
Poor |
Excellent |
Good |
| Reconcilliation is possible |
Poor |
Excellent |
Good |
| Desire to maintain post divorce relationship |
Poor |
Excellent |
Good |
| Gross Power inbalances/abuse |
Excellent |
Poor |
Fair |
| Low confidence in own ability to make decisions |
Good |
Fair |
Excellent |
| Privacy Concerns |
Poor |
Excellent |
Good |
| Timeliness |
Poor |
Excellent |
Good |
| Financial Cost to Client |
Poor |
Excellent |
Good |
| Signficant Mental Illness |
Good |
Poor |
Excellent |
| Your attorneys don't seem to like each other |
Poor |
Excellent |
Poor |
| One spouse refuses to communicate |
Good |
Fair |
Good |
Some of the negative factors can often be addressed within the process. For example, while mediation may not be as desirable for a party that has low confidence in their own ability to make decisions, this negative factor for mediation can be de-emphasized if that party has the benefit of consulting counsel through out the process. In some cases, often where clients feel that the playing field is not even, consulting counsel attend mediation sessions.
11. How Much Child Support Will I Have To Pay?
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Most people are not surprised to learn that the law requires parents to support their children, regardless or whether or not the parents are married to one another.
Kansas has established Child Support Guidelines to assist lawyers, Judges and the public in determining a minimum child support amount for families of a given size and income level. Many couples find understanding and applying the Child Support Guidelines to their situation difficult. Through the use of specialized computer programs, attorneys are able to assist clients in demystifying the Guidelines and in understanding how they might apply to their situation.
Child support is not tax-deductible. The person paying it does not receive a tax deduction nor does the spouse receiving it have to report it as income on their taxes.
12. Will I Have To Pay Alimony? How Much?
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In Kansas, “alimony” is called “maintenance.”
Sometimes people are surprised to learn that not every divorce involves maintenance. For one thing, there has to be the need for such support and the ability to pay it. For another, there has to be the request for such support. Typically, maintenance terminates upon the death, remarriage, cohabitation, or after a term of months.
Unlike the question of child support, Kansas law does not provide worksheets or guidelines to assist in the calculation of spousal support. Some counties have guidelines that courts will often consider but are not bound to follows. For example in Johnson County, maintenance for families with children is often set at 20% of the difference between the parties’ income. For more information or to review the Johnson County Guidelines, go to helpful links.
13. Do We Have To State Specific Reasons For Getting Divorced?
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No. Kansas allows for a “no-fault” divorce based on incompatibility.
14. We Have Already Agreed On Everything. Do We Still Need a Mediator?
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In general, the more a couple have agreed upon before sitting down with a mediator, the faster (and less expensive) the mediation process will be.
Mediators often work couples that have “worked it all out” between themselves prior to their initial appointment. In such cases, the mediator will devote time and effort to making sure that all the necessary details have been thought out and are equitable under all the circumstances. The mediator can also typically prepare all of the necessary paper work.
15. Can Mediation Help Us Before We Get Divorced?
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Yes. Mediators often help a couple agree upon “ground rules” they will both abide by prior to their divorce being finalized or while they are separated. Such “ground rules” can even be developed to address situations where the couple is deciding if they wish to be divorced. These interim agreements can address parenting schedules with the children, rules regarding conduct while with the children, the payment of joint bills, the sale of assets, the payment of professional fees and any other issue relevant to their circumstances.
16. Can Mediation Help Us After We Get Divorced?
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Yes. A standard provision in most mediated settlement agreement provides that the couple will meet in good faith to try to work out their disagreements directly with one another, before going to court. Further, if that fails, they will attempt to resolve the issue through mediation. Please note that even if you litigated your divorce, you can still mediate any post-divorce disagreements with a mediator.
17. We’re Not Married, But We Want Help Splitting Up. Can mediation Help Us?
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Yes. Regardless of whether you are married to each other or not, mediation can assist you in identifying the important issues involved with your relationship. Non-traditional families and couples often find mediation to be a safe, friendly and confidential environment within which their needs and concerns can be discussed and resolved.
18. We’ve Already Started To Litigate Our Divorce. Can Mediation Still Help Us?
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Many clients come to mediation after they’ve been in litigation. They put the litigation on hold and explore whether resolution is possible through mediation. Often judges order mediation.
19. What kind of agreements do I have to sign to mediate?
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In Kansas a certified attorney mediator is required to make certain disclosures to the client. Visit My First Appointment for forms to review.
20. Will I be required to post a retainer?
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It is very common practice for most family law attorneys to require a retainer. You should very carefully review with your attorney his or her billing practices.
21. What should I bring to my first meeting? (Back to Top)
Visit My First Appointment.
22. What is limited representation?
Many families try to complete their divorce on their own, perhaps down loading forms from the internet. Rarely are they able to get it right. The judges are forced to try to help them and this is not their job. As a result, Kansas is trying an experimental program, in which I am participating. With Limited Representaion, the lawyer is allowed to restrict the scope of representation to a limited tasks, e.g. just filling out forms. In the past, attorneys were worried that the client would later come back and complain that he was not fully represented, even though he or she only asked for and paid for a partial representation. We now have specialized agreements for the attorney and client to sign that make the limited representation contractually agreed upon. In this fasion, some families may be able to complete their divorce for as little as a one thousand dollars. This is an example of the agreement:  gdkform - Limited Scope Representation Agreement (194418).DOC
Please visit my Contact page if you have any further questions.
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